Citation Nr: 0905410
Decision Date: 02/13/09 Archive Date: 02/19/09
DOCKET NO. 90-44 277A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boise,
Idaho
THE ISSUE
Entitlement to service connection for lumbar spine
degenerative disc disease (DDD).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Dylan R. Kytola, Law Clerk
INTRODUCTION
The veteran had active duty military service from September
1956 to September 1959. This matter comes before the Board
of Veterans' Appeals (Board) on appeal from a September 1989
rating determination by the Regional Office (RO) of the
Department of Veterans Affairs (VA) in Los Angeles, CA.
In July 2006, the Board denied entitlement to service
connection for lumbar spine DDD. The veteran subsequently
appealed to the Court of Appeals for Veterans Claims (Court).
In a September 2007 Joint Motion for Remand, which was
granted by Order of the Court in October 2007, the parties
(the Secretary of VA and the veteran) determined that a
remand was warranted.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
In light of the Court's granting of the Joint Motion for
Remand, the Board has determined that further evidentiary
development is necessary to properly readjudicate the
veteran's claim. Specifically, the Board finds that the
veteran is entitled to a new medical examination.
Under McLendon v. Nicholson, 20 Vet. App 79, 86 (2006)
(citing 38 U.S.C.A. § 5103A(d)(2)), a medical examination
must be provided "when there is: (1) competent evidence of a
current disability or persistent or recurrent symptoms of a
disability . . . and (2) evidence establishing that an event,
injury, or disease occurred in service or establishing
certain diseases manifesting during an applicable presumptive
period for which the claimant qualifies, and (3) an
indication that the disability or persistent or recurrent
symptoms of a disability may be associated with the veteran's
service or with another service-connected disability, but (4)
insufficient competent medical evidence on file for the
(Board) to make a decision on the claim."
In this case, there is evidence that the veteran suffers from
a lower back disability. The veteran was diagnosed with
lumber spine DDD in August 1984.
There is also evidence that the veteran had low back pain
during service. Although the veteran's service treatment
records were destroyed by fire, the veteran has obtained
alternative evidence which demonstrates that he at least
complained of back pain during service. A fellow soldier
submitted a statement in August 1989 stating that one day
during service the veteran complained to him of back pain
after returning from fuel duty. Although the fellow soldier
did not witness an injury, he remembers that the Veteran
would no longer run foot races with him as they had done
before. Further, the Board notes that in September 1959, the
veteran was transferred to a reserve unit because of a
physical disability, although no particular disability is
identified.
Finally, the Board notes that there is at least an indication
the veteran's lower back condition is related to his active
duty service. In July 1989, the veteran submitted a
statement from Dr. Waller in which the doctor opined that the
Veteran's spinal condition was first initated [sic] when he
was in the Army. However, the Board finds that this
statement offers little probative value because there is no
indication that Dr. Waller examined the veteran or was
familiar with his medical history. Such a general statement
without supporting evidence or discussion is insufficient to
establish a grant of service connection; however, it does
provide at least an indication that the veteran's lower back
condition may be associated with his active duty service.
Therefore, the Board finds that a new medical examination is
warranted.
Accordingly, the case is REMANDED for the following action:
1. Schedule the veteran for a VA
examination to determine whether his
current lower back condition is
etiologically related to his active duty
service. The claims file, to include a
copy of this REMAND, must be made
available to the examiner for review. The
examination report should reflect that
such review was completed. After
reviewing the record, examining the
veteran, and performing any medically
indicated testing, the examiner should
provide a diagnosis for each current lower
back disability. The examiner should then
provide an opinion as to whether it is
more likely than not (more than 50 percent
probability), at least as likely as not
(50-50 percent probability), or less
likely than not (less than 50 percent
probability) that the veteran's current
lower back disorder is etiologically
related to his active duty service. A
detailed rationale should be provided for
all opinions. If it cannot be determined
whether the veteran currently has a lower
back disability that is related to service
on a medical scientific basis and without
invoking processes related to guesses or
based upon mere conjecture, the examiner
should clearly and specifically state so
in the examination report, with an
explanation as to why this is so.
2. After completion of the above and any
other development deemed necessary, review
the expanded record and readjudicate the
veteran's claim on appeal. Unless the
benefits sought are granted, the veteran
and his representative, if any, should be
furnished a supplemental statement of the
case that fully complies with the
provisions of 38 C.F.R. § 19.29 (2008).
The veteran and his representative, if
any, should then be afforded the
opportunity to respond, after which the
case should be returned to the Board, if
in order, for further appellate review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
MILO H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).